Citation Nr: 0717265
Decision Date: 06/08/07 Archive Date: 06/18/07
DOCKET NO. 93-11 898 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUES
1. Entitlement to a compensable rating for residuals of
shell fragment wounds of the left back.
2. Entitlement to a rating in excess of 10 percent and an
effective date earlier than September 26, 1991, for the award
of service connection for a compression fracture at L-1.
3. Entitlement to an annual clothing allowance for the years
1997, 1998, 1999, and 2000.
4. Entitlement to an annual clothing allowance for the year
2002.
5. Entitlement to an increased rating for residuals of shell
fragment wounds to the right thigh, hip, and buttocks.
6. Entitlement to an increased rating for residuals of shell
fragment wounds to the left hip.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
October 1963 to October 1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from decisions in October 1989 and October
2000 by the New York, New York, Regional Office (RO) of the
Department of Veterans Affairs (VA). In March 2007, the
veteran testified at a personal hearing before the
undersigned Veterans Law Judge. A copy of the transcript of
that hearing is of record.
The Board notes that by correspondence dated in March 2007
the veteran withdrew his appeal as to the issues of
entitlement to increased ratings for the residuals of shell
fragment wounds to the right thigh, hip, and buttocks and for
the residuals of shell fragment wounds to the left hip.
In the March 2007 correspondence, the veteran raised the
issues of entitlement to service connection for neuropathy of
the right upper and lower extremities, and entitlement to
service connection for a left hip scar (he is service-
connected for residuals of a shell fragment wound of the left
hip). These issues have not been prepared for appeal and are
referred to the RO for actions deemed appropriate.
The issue perfected for appellate review of entitlement to an
annual clothing allowance for the years 1997, 1998, 1999, and
2000 must be remanded for compliance with the order to
readjudicated the issue as provided in a December 2003 Board
remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
The record shows that in a November 2002 rating decision the
RO granted entitlement to service connection for a
compression fracture at L-1 and assigned a 10 percent rating
effective date from September 26, 1991. The record also
shows that in January 2003 the RO denied entitlement to an
annual clothing allowance for the year 2002. In
correspondence received in February 2003 the veteran
expressed disagreement with the assigned 10 percent rating
and effective date for the award of service connection for a
compression fracture at L-1 and with the denial of his claim
for a clothing allowance for the year 2002. The United
States Court of Appeals for Veterans Claims (hereinafter
"the Court") has held that where the Board finds a notice
of disagreement has been submitted regarding a matter which
has not been addressed in a statement of the case, the issue
should be remanded for appropriate action. Manlincon v.
West, 12 Vet. App. 238 (1999). As these issues have not been
properly addressed in a statement of the case, they must be
remanded for appropriate development.
In correspondence dated in March 2004 he raised the issue of
entitlement to compensation for a right hip disability as a
result of VA treatment. At his personal hearing in March
2007 and in correspondence dated in March 2007 the veteran
raised the issues of entitlement to service connection for a
left hip scar, neuropathy of the right upper and lower
extremities, residuals of a shell fragment wound to the left
chest, residuals of a shell fragment wound to the left arm,
narcolepsy, residuals of a lap band procedure, and
pancreatitis. He also raised the issues of entitlement to an
increased rating for a skin disorder. In correspondence
dated in June 1994, March 2001, and February 2003 he raised
the issue of whether there was clear and unmistakable error
as to the award of service connection for residuals of shell
fragment wounds to the left back in an August 1969 rating
decision. These matters are referred to the RO for
appropriate action.
The Board also notes that the veteran claims entitlement to
an annual clothing allowance for the years 2001 and 2003.
There is no indication, however, that these matters have been
adjudicated. It is significant to note that the RO maintains
responsibility for furnishing statements of the case and
certifying appeals only from decisions promulgated prior to
the transitioning of such claims to the Veterans Health
Administration (VHA) in August 2003. See VA's Adjudication
Procedure Manual (M21-1MR), Part IX, Subpart i, Chapter 7.
Therefore, this matter is referred to the RO for appropriate
action.
The issues of entitlement to an annual clothing allowance for
the years 1997, 1998, 1999, and 2000 and entitlement to an
annual clothing allowance for the year 2002 are addressed in
the REMAND portion of the decision below and are REMANDED to
the RO via the Appeals Management Center (AMC), in
Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the issue of an increased rating for residuals
of shell fragment wounds of the left back was obtained.
2. The veteran's service-connected residuals of shell
fragment wounds of the left back are manifested by no more
than a moderate injury to Muscle Group XX with retained metal
fragments.
3. On March 7, 2007, prior to the promulgation of a decision
in the appeal, the Board received notification from the
appellant, through his authorized representative, that a
withdrawal of the appeal of entitlement to an increased
rating for residuals of shell fragment wounds to the right
thigh, hip, and buttocks is requested.
4. On March 7, 2007, prior to the promulgation of a decision
in the appeal, the Board received notification from the
appellant, through his authorized representative, that a
withdrawal of the appeal of entitlement to an increased
rating for residuals of shell fragment wounds to the left hip
is requested.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating, but no higher, for
residuals of shell fragment wounds of the left back have been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2006);
38 C.F.R. §§ 4.55, 4.56, 4.73, Diagnostic Code 5320 (2006).
2. The criteria for withdrawal of a Substantive Appeal by
the appellant (or his or her representative) for the issue of
entitlement to an increased rating for residuals of shell
fragment wounds to the right thigh, hip, and buttocks have
been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002);
38 C.F.R. §§ 20.202, 20.204 (2006).
3. The criteria for withdrawal of a Substantive Appeal by
the appellant (or his or her representative) for the issue of
entitlement to an increased rating for residuals of shell
fragment wounds to the left hip have been met. 38 U.S.C.A.
§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). In this case,
the veteran was notified of the VCAA duties to assist and of
the information and evidence necessary to substantiate his
increased rating claim for residuals of shell fragment wounds
of the left back by correspondence dated in September 2004
and February 2005. While this was after the initial
adjudication of the claim, the initial determination in this
case was provided many years before enactment of the VCAA
notice requirements. Adequate opportunities to submit
evidence and request assistance have been provided.
During the pendency of this appeal, the Court in Dingess v.
Nicholson, 19 Vet. App. 473 (2006), found that the VCAA
notice requirements applied to all elements of a claim.
Here, the notice requirements pertinent to the increased
rating issue addressed in this decision have been met and all
identified and authorized records relevant to this matter
have been requested or obtained. Because of the decision in
this case any deficiency in the initial notice to the veteran
of the duty to notify and duty to assist in claims involving
a disability rating and an effective date for the award of
benefits is harmless error. Although the veteran submitted
new authorizations for the release of private medical records
in March 2007, the Board finds the information apparently
pertains to new issues raised by the veteran which are being
referred to the RO for proper adjudication. There is no
indication of the existence of any additional private medical
evidence pertinent to the issue addressed in this decision.
Further attempts to obtain additional evidence would be
futile. The Board finds the available medical evidence is
sufficient for an adequate determination. There has been
substantial compliance with all pertinent VA law and
regulations and to move forward with this claim would not
cause any prejudice to the appellant.
Increased Rating Claim
Background
Service medical records show the veteran sustained "very
superficial shrapnel wounds" to the buttocks, left back, and
arms as a result of a land mine explosion while on patrol in
February 1966. Upon arrival at the medical facility, he was
in no acute distress and that there was no evidence of nerve
or artery involvement. Records show the wounds were debrided
and drained. He was hospitalized for seven days and
subsequently discharged to duty. The veteran's September
1968 discharge examination revealed shrapnel scars, including
to the left back.
During a November 1968 VA medical examination, the veteran
complained of vague low back aching. Objectively, the range
of motion of the back was intact. X-ray films revealed some
irregularity at L-1, possibly due to the projection. Another
projection was suggested. However, the impression was:
grossly normal lumbar spine.
An August 1969 rating decision established entitlement to
service connection for residuals of a shell fragment wound to
the left back. A zero percent disability rating was assigned
under diagnostic code 7805.
VA treatment records dated in November 1978 include an X-ray
examination report noting a small metallic fragment in the
right posterior soft tissues in the area of L-2 and a smaller
fragment to the left of T-11. Physical examination in
November 1978 revealed well-healed shell fragment wound scars
that were nonadherent and nontender, although the veteran
stated that they were tender are various times. It was noted
the veteran undressed and dressed readily with free and
painless range of trunk motion. There was no tenderness over
the dorsal or lumbar spines and no spasm to the dorsal or
lumbar musculature.
On VA examination in August 1989 the veteran stated his
belief that he had sustained a fracture of the lumbar spine
at L-4 when he was wounded in 1966. He stated no treatment
had been provided at that time. The examiner noted range of
motion of the lumbar spine was restricted with pain and
spasm. There was no visible scar to the lower back. A
February 1990 VA treatment report noted a diagnosis of
chronic low back pain since 1966 secondary to shrapnel
wounds.
Private medical records dated in August 1991 show a
computerized tomography (CT) scan revealed a metallic
fragment in the left paraspinal muscles at the level of the
kidneys. A March 2001 report noted films taken in October
1970 revealed evidence of metallic fragments in the left
thoracic area posterior to about the level of T-12 and L-1.
VA scars examination in July 1994 revealed a two centimeter
round scar to the left upper back. It was noted the veteran
complained that the scar was occasionally painful. A
November 1999 treatment report noted the veteran had agreed
to a trial of medication for neuropathic pain from shrapnel
in this back.
VA scars examination in June 2002 noted an entry scar at the
mid left scapula that was three by two centimeters into deep
muscle, adherent, and nontender; there was a second scar at
the mid left low back that was one by one half centimeters
into deep muscle, adherent, and nontender; and a third scar
at the left mid back that was three by one centimeter into
deep muscle, adherent, and nontender. It was noted that none
of the scars were sensitive or tender. There was no tendon,
bone, joint, or nerve damage, and no loss of muscle function.
There was no joint affected by a shrapnel wound. The
diagnoses included shrapnel wounds over the right back of the
scapula and mid back of the low back which penetrated the
underlying muscles of group IV, XIII, and XVII. There was
some retained shrapnel in the soft tissues and some residual
intermittent back muscle stiffness due to retained foreign
bodies.
VA neurologic and orthopedic examinations in June and July
2002 found the veteran's degenerative joint disease of the
lumbosacral spine was not due to a shrapnel wound in the
back. X-rays of the lumbar spine revealed a tiny metallic
fragment behind L-1 and L-2.
In a November 2002 rating decision the RO, in pertinent part,
granted entitlement to service connection for a compression
fracture at L-1. A 10 percent disability rating was assigned
effective from September 26, 1991. The veteran subsequent
submitted a notice of disagreement with the assigned
compensation rating and effective date, but the issues were
not developed for appellate review (as explained in the
remand portion of this decision).
On VA muscle examination in September 2005 the veteran
complained of generalized muscle pain mostly in the right
thigh muscle. The examiner noted a review of medical history
revealed shrapnel wounds including to the low and mid back
which penetrated the muscles. There was no gross loss of
muscle mass. There were some retained metallic foreign
bodies in the back. The exact muscles injured included group
IV, group VI, group XIII, group XVII, and group XX. There
were no associated injuries affecting the bony structures,
the nerves, or the vascular structures. There were no
present symptoms of back muscle pain. It was noted there was
minor tissue loss and that mostly muscles were penetrated.
There was no tenderness on superficial palpation, but there
was tenderness on deep palpation by the veteran's report. It
was noted, in essence, that the report of tenderness was not
demonstrated by objective facial expression. The diagnoses
included multiple shell fragment wounds which penetrated
muscle groups IV, VI, XIII, XVII, and XX. There were
retained foreign bodies in the soft tissues behind L1-L2 and
at the level of T12-L1. It was the examiner's opinion that
due to his shrapnel wounds the veteran was not employable for
a physical job, but that he was employable for a sedentary
job.
VA scars examination in September 2005 revealed scars
including one at the posterior aspect of the left scapula
that was two centimeters by one half centimeter into deep
muscle, which was adherent but not tender. There was a scar
in the left mid back that was two centimeters by one half
centimeters into deep muscle and a tiny, not clearly visible,
scar to the low back. The examiner noted that there were no
present symptoms in the scar areas. It was noted that some
scars were tender on deep pressure, but that there was no
evidence of pain. The specific tender scars were not
identified. There was some adherence to underlying tissue
and some scars were mildly depressed. All of the scars were
deep. There was no evidence of inflammation, edema, keloid
formation, or limitation of motion due to scarring. The scar
over the back was mildly indurated and inflexible. The
diagnoses included residual scars.
At his personal hearing in March 2007 the veteran described
the scars to his back. No additional comments as to the
residuals of any back muscle injuries were provided.
Analysis
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings in the Rating
Schedule represent, as far as can be practicably determined,
the average impairment in earning capacity resulting from
diseases and injuries incurred or aggravated during military
service and their residual conditions in civil occupations.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2006).
It is the responsibility of the rating specialist to
interpret reports of examination in the light of the whole
recorded history, reconciling the various reports into a
consistent picture so that the current rating may accurately
reflect the elements of disability present. 38 C.F.R. § 4.2
(2006).
Consideration of factors wholly outside the rating criteria
constitutes error as a matter of law. Massey v. Brown, 7
Vet. App. 204, 207-08 (1994). Evaluation of disabilities
based upon manifestations not resulting from service-
connected disease or injury and the pyramiding of ratings for
the same disability under various diagnoses is prohibited.
38 C.F.R. § 4.14 (2006). The Court, however, has held that
disabilities may be rated separately without violating the
prohibition against pyramiding unless they constitute the
same disability or symptom manifestations. See Esteban v.
Brown, 6 Vet. App. 259, 261 (1994).
The Court has also held that where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. Grottveit v. Brown, 5 Vet.
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492 (1992). VA is free to favor one medical opinion over
another provided it offers an adequate basis for doing so.
See Owens v. Brown, 7 Vet. App. 429 (1995).
When there is a question as to which of two evaluations to
apply, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating, otherwise the lower rating shall be
assigned. 38 C.F.R. § 4.7 (2006).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 4.3 (2006).
VA's General Counsel, in a precedent opinion, has held that
when a new regulation is issued while a claim is pending
before VA, unless clearly specified otherwise, VA must apply
the new provision to the claim from the effective date of the
change as long as the application would not produce
retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003);
Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Where the
law or regulations governing a claim are changed while the
claim is pending the version most favorable to the claimant
applies (from the effective date of the change), absent
congressional intent to the contrary.
During this appeal the rating criteria for muscle injuries
were revised and renumbered. See 62 Fed. Reg. 30327-28 (June
3, 1997). Under the old law, VA regulations provided that in
rating disability from injuries of the musculoskeletal system
attention was to be given first to the deeper structures
injured, bones, joints and nerves. See 38 C.F.R. § 4.72
(prior to July 3, 1997). Although this specific provision
was deleted upon revision, there were no significant changes
upon revision affecting the veteran's present claim. The
revised muscle injury rating criteria are neither more nor
less favorable.
VA regulations presently provide principles of combined
ratings for muscle injuries, including that a muscle injury
rating will not be combined with a peripheral nerve paralysis
rating of the same body part, unless the injuries affect
entirely different functions. 38 C.F.R. § 4.55(a) (2006).
For rating purposes, the skeletal muscles of the body are
divided into 23 muscle groups in 5 anatomical regions:
6 muscle groups for the shoulder girdle and arm (diagnostic
codes 5301 through 5306); 3 muscle groups for the forearm and
hand (diagnostic codes 5307 through 5309); 3 muscle groups
for the foot and leg (diagnostic codes 5310 through 5312);
6 muscle groups for the pelvic girdle and thigh (diagnostic
codes 5313 through 5318); and 5 muscle groups for the torso
and neck (diagnostic codes 5319 through 5323). 38 C.F.R.
§ 4.55(b).
The combined evaluation of muscle groups acting upon a single
unankylosed joint must be lower than the evaluation for
unfavorable ankylosis of that joint, except in the case of
muscle groups I and II acting upon the shoulder. 38 C.F.R.
§ 4.55(d). For compensable muscle group injuries which are
in the same anatomical region but do not act upon the same
joint, the evaluation for the most severely injured muscle
group will be increased by one level and used as the combined
evaluation for the affected muscle groups. 38 C.F.R.
§ 4.55(e).
For VA rating purposes, an open comminuted fracture with
muscle or tendon damage will be rated as a severe injury of
the muscle group involved unless, for locations such as in
the wrist or over the tibia, evidence establishes that the
muscle damage is minimal. A through and through injury with
muscle damage shall be evaluated as no less than a moderate
injury for each group of muscles damaged. The cardinal signs
and symptoms of muscle disability are loss of power,
weakness, lowered threshold of fatigue, fatigue-pain,
impairment of coordination and uncertainty of movement.
Evaluation of muscle injuries as slight, moderate, moderately
severe, or severe, is based on the type of injury, the
history and complaints of the injury, and objective findings.
38 C.F.R. § 4.56 (2006).
A slight disability of muscles is described as a simple wound
of muscle without debridement or infection. The service
department records would demonstrate a superficial wound with
brief treatment and return to duty. Healing would be shown
as having been with good functional results. No cardinal
signs or symptoms of muscle disability would be shown and the
scar would be minimal with no evidence of fascial defect,
atrophy, or impaired tonus. There would be no impairment of
function or metallic fragments retained in muscle tissue.
Id.
A moderate disability of the muscles may result from through
and through or deep penetrating wounds of relatively short
track by a single bullet or small shell or shrapnel fragment.
The absence of the explosive effect of a high velocity
missile and of residuals of debridement or of prolonged
infection also reflects moderate injury. The history of the
disability should be considered, including service department
records or other sufficient evidence of hospitalization in
service for treatment of the wound. Consistent complaints on
record from the first examination forward of one or more of
the cardinal symptoms of muscle wounds, particularly fatigue
and fatigue-pain after moderate use, and an effect on the
particular functions controlled by the injured muscles should
be noted. Evidence of moderate disability includes entrance
and (if present) exit scars which are linear or relatively
small and so situated as to indicate relatively short track
of missile through muscle tissue, signs of moderate loss of
deep fascia or muscle substance or impairment of muscle
tonus, and of definite weakness or failure in comparative
tests. Id.
A moderately severe disability of the muscles is
characterized by evidence of a through and through or deep
penetrating wound by a high velocity missile of small size or
a large missile of low velocity, with debridement or with
prolonged infection, or with sloughing of soft parts, or
intermuscular cicatrization. Service department records or
other sufficient evidence showing hospitalization for a
prolonged period in service for treatment of a wound of
severe grade should be considered. Records in the file of
consistent complaints of cardinal symptoms of muscle wounds
should also be noted. Evidence of unemployability due to an
inability to keep up with work requirements may be
considered. Objective findings should include relatively
large entrance and (if present) exit scars so situated as to
indicate the track of a missile through important muscle
groups. Indications on palpation of moderate loss of deep
fascia, or moderate loss of muscle substance or moderate loss
of normal firm resistance of muscles compared with the sound
side may be considered. Tests of strength and endurance of
the muscle groups involved may also give evidence of marked
or moderately severe loss. Id.
A severe disability of the muscles is characterized by
evidence of through and through or deep penetrating wound due
to a high velocity missile, or large or multiple low velocity
missiles, or explosive effect of a high velocity missile, or
shattering bone fracture with extensive debridement or
prolonged infection and sloughing of soft parts,
intermuscular binding and cicatrization. Service department
records or other sufficient evidence showing hospitalization
for a prolonged period in service for treatment of a wound of
severe grade should be considered. Records in the file of
consistent complaints of cardinal symptoms of muscle wounds
should also be noted. Evidence of unemployability due to an
inability to keep up with work requirements may be
considered. Id.
Objective evidence of severe disability includes extensive
ragged, depressed, and adherent scars of skin so situated as
to indicate wide damage to muscle groups in the track of a
missile. X-ray may show minute multiple scattered foreign
bodies indicating spread of intermuscular trauma and
explosive effect of a missile. Palpation shows moderate or
extensive loss of deep fascia or of muscle substance. Soft
or flabby muscles in wound area. Muscles do not swell and
harden normally in contraction. Tests of strength or
endurance compared with the sound side or of coordinated
movements show positive evidence of severe impairment of
function. In electrical tests, reaction of degeneration is
not present but a diminished excitability to faradic current
compared with the sound side may be present. Visible or
measured atrophy may or may not be present. Adaptive
contraction of an opposing group of muscles, if present,
indicates severity. Adhesion of a scar to one of the long
bones, scapula, pelvic bones, sacrum or vertebrae, with
epithelial sealing over the bone without true skin covering,
in area where bone is normally protected by muscle, indicates
the severe type. Atrophy of muscle groups not included in
the track of the missile, particularly of the trapezius and
serratus in wounds in the shoulder girdle (traumatic muscular
dystrophy), and induration and atrophy of an entire muscle
following simple piercing by a projectile (progressive
sclerosing myositis), may be included in the severe group if
there is sufficient evidence of severe disability. Id.
The Court, citing Robertson v. Brown, 5 Vet. App. 70 (1993),
held that 38 C.F.R. § 4.56(d) is essentially a totality-of-
the-circumstances test and that no single factor is per se
controlling. Tropf v. Nicholson, 20 Vet. App. 317 (2006).
532
0
Group XX.
Rating
Function: Postural support of body; extension and
lateral movements of spine.
Spinal muscles: Sacrospinalis (erector spinae and its
prolongations in thoracic and cervical regions).
Cervical and thoracic region:
Severe
40
Moderately Severe
20
Moderate
10
Slight
0
Lumbar region:
Severe
60
Moderately Severe
40
Moderate
20
Slight
0
38 C.F.R. § 4.73, Diagnostic Code 5320 (2006)
VA regulations for the evaluation of skin disabilities were
also revised during this appeal effective August 30, 2002.
See 67 Fed. Reg. 49590-49599 (Jul. 31, 2002) and corrections
67 Fed. Reg. 58448-58449 (Sept. 16, 2002).
The applicable rating criteria for scars prior to August 30,
2002, are as follows:
7805
Scars, other;
Rate on limitation of function of affected part.
38 C.F.R. § 4.118, Diagnostic Code 7805 (prior to August 30,
2002).
The revised applicable rating criteria for scars are as
follows:
780
1
Scars, other than head, face, or neck, that are
deep or that cause limited motion:
Ratin
g
Area or areas exceeding 144 square inches (929
sq.cm.).
40
Area or areas exceeding 72 square inches (465 sq.
cm.).
30
Area or areas exceeding 12 square inches (77 sq.
cm.).
20
Area or areas exceeding 6 square inches (39 sq.
cm.).
10
Note (1): Scars in widely separated areas, as on two or more
extremities or on anterior and posterior surfaces of
extremities or trunk, will be separately rated and combined
in accordance with Sec. 4.25 of this part.
Note (2): A deep scar is one associated with underlying soft
tissue damage.
7802
Scars, other than head, face, or neck, that are
superficial and that do not cause limited motion:
Area or areas of 144 square inches (929 sq. cm.)
or greater
10
Note (1): Scars in widely separated areas, as on two or
more extremities or on anterior and posterior surfaces
of extremities or trunk, will be separately rated and
combined in accordance with Sec. 4.25 of this part.
Note (2): A superficial scar is one not associated with
underlying soft tissue damage.
7803
Scars, superficial, unstable
10
Note (1): An unstable scar is one where, for any
reason, there is frequent loss of covering of
skin over the scar.
Note (2): A superficial scar is one not
associated with underlying soft tissue damage.
7804
Scars, superficial, painful on examination
10
Note (1): A superficial scar is one not
associated with underlying soft tissue damage.
Note (2): In this case, a 10-percent evaluation
will be assigned for a scar on the tip of a
finger or toe even though amputation of the part
would not warrant a compensable evaluation. (See
Sec. 4.68 of this part on the amputation rule.)
7805
Scars, other;
Rate on limitation of function of affected part.
38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804,
7805 (after August 30, 2002).
Based upon the evidence of record, the Board finds the
veteran's service-connected residuals of shell fragment
wounds of the left back are manifested by no more than a
moderate injury to Muscle Group XX. Although the service-
connected disability on appeal has been previously rated for
scars under the criteria for diagnostic code 7805, the Board
finds the disability is more appropriately rated as a muscle
injury. See Butts v. Brown, 5 Vet. App. 532, 539 (1993)
(Court held that VA's choice of diagnostic code should be
upheld so long as it is supported by explanation and
evidence).
The record shows the veteran received numerous shrapnel
wounds during service in Vietnam, but only the residuals of
wounds to the back are presently for appellate review. The
medical evidence shows the veteran has three shrapnel wounds
in the back area involving Muscle Group XX with retained
metallic fragments in the mid and low back. There are no
other service-connected muscle injuries within the anatomical
reg7ion of the torso and neck. It is significant to note
that within diagnostic code 5320 itself ratings are provided
for injuries affecting the cervical and thoracic spine area
and for injuries affecting the lumbar spine area. The
veteran's injuries to Muscle Group XX involve both the
thoracic and the lumbar spine. The Board finds, however,
that only one disability rating may be assigned under
diagnostic code 5320 without violating the prohibition
against pyramiding ratings. See 38 C.F.R. § 4.14. As the
ratings for the lumbar spine component of diagnostic code
5320 are more favorable for the veteran, the Board finds
entitlement to a 20 percent rating, but no higher, is
warranted under the criteria for diagnostic code 5320.
There is no probative evidence of a moderately severe
disability of the muscles characterized by evidence of a
through and through or deep penetrating wound by a high
velocity missile of small size or a large missile of low
velocity. There is no evidence of prolonged infection,
sloughing of soft parts, or intermuscular cicatrization nor
evidence showing hospitalization for a prolonged period in
service. Objective findings do not include relatively large
entrance scars indicative of the track of a missile through
important muscle groups. Palpation did not reveal moderate
loss of deep fascia, moderate loss of muscle substance, or
moderate loss of normal firm resistance of muscles. There is
also no probative evidence of any limitation of back motion
due to scarring, scarring exceeding six square inches,
unstable scarring, or painful scarring on examination.
Therefore, the Board finds no higher or separate ratings are
warranted.
The Board also finds there is no evidence of any unusual or
exceptional circumstances, such as marked interference with
employment or frequent periods of hospitalization related to
this service-connected disorder, that would take the
veteran's case outside the norm so as to warrant an
extraschedular rating. The objective medical findings of
record as to the service-connected disability are not
indicative of any more severe impairment than the moderate
muscle injury for which the veteran is presently rated. The
September 2005 VA examiner specifically found the veteran was
not precluded from sedentary work as a result of his shrapnel
wounds. The veteran has also been in receipt of a
100 percent schedular rating for post-traumatic stress
disorder since June 24, 1994. Therefore, referral by the RO
to the Chief Benefits Director of VA's Compensation and
Pension Service, under 38 C.F.R. § 3.321, is not warranted.
See Bagwell v. Brown, 9 Vet. App. 337 (1996).
Withdrawal of Appeals
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2006). Withdrawal may be
made by the appellant or by his or her authorized
representative. 38 C.F.R. § 20.204 (2006). The appellant,
through his authorized representative) has withdrawn the
appeals of entitlement to an increased rating for residuals
of shell fragment wounds to the right thigh, hip, and
buttocks, and entitlement to an increased rating for
residuals of shell fragment wounds to the left hip; and,
hence, there remain no allegations of errors of fact or law
for appellate consideration. Accordingly, the Board does not
have jurisdiction to review these appeals and they are
dismissed.
ORDER
Entitlement to a 20 percent rating, but no higher, for
residuals of shell fragment wounds of the left back is
granted, subject to the regulations governing the payment of
monetary awards.
The appeal regarding entitlement to an increased rating for
residuals of shell fragment wounds to the right thigh, hip,
and buttocks is dismissed.
The appeal regarding entitlement to an increased rating for
residuals of shell fragment wounds to the left hip is
dismissed.
REMAND
As noted above, there has been a significant change in VA law
brought about by the enactment of VCAA. A review of the
record shows the veteran was not adequately notified of the
evidence necessary to substantiate his claims for entitlement
to a rating in excess of 10 percent or a compression fracture
at L-1; entitlement to an effective date earlier than
September 26, 1991, for the award of service connection for a
compression fracture at L-1; and for entitlement to an annual
clothing allowance. The veteran was not informed of which
parties were expected to provide various pieces of evidence.
Although the veteran was notified, generally, of the VCAA
duty to assist by correspondence issued in September 2004, he
was not provided notice specific to his claims.
The veteran also contends, in essence, that the annual claim
filing requirements of 38 C.F.R. § 3.810(c) should not be
applied to deny payment of a clothing allowance for the years
at issue of 1998, 1999, and 2000. He contends his failure to
submit timely applications was due to faulty memory secondary
to his service-connected psychiatric disability and that VA
failed to adequately assist him by notifying him that he
needed to apply each year. These matters should be addressed
by the RO prior to appellate review.
As a statement of the case has not been issued from the
veteran's disagreement with the November 2002 rating decision
as to the assigned rating and effective date for a
compression fracture at L-1 and with the January 2003 rating
decision which denied a claim for entitlement to an annual
clothing allowance for the year 2002, the Board finds
additional development of these issues is also required.
Manlincon, 12 Vet. App. 238.
Accordingly, the case is REMANDED for the following action:
1. The veteran must be provided
notification (1) of the information and
evidence not of record necessary to
substantiate his claims for entitlement
to a rating in excess of 10 percent and
an effective date earlier than September
26, 1991, for the award of service
connection for a compression fracture at
L-1, and for entitlement to an annual
clothing allowance for the years 1998,
1999, 2000, and 2002; (2) of the
information and evidence that VA will
seek to provide; (3) of the information
and evidence that he is expected to
provide; and (4) to request or tell him
to provide any evidence in his possession
that pertains to the claims. These
notice requirements are to be applied to
all elements of the claims.
2. The veteran should be provided a
statement of the case on the issues of
entitlement to a rating in excess of 10
percent and an effective date earlier
than September 26, 1991, for the award
of service connection for a compression
fracture at L-1 and entitlement to an
annual clothing allowance for the year
2002. The veteran and his
representative should be apprised that
to perfect the appeal on this issue for
Board review he must submit a
substantive appeal. The requisite
period of time for a response should be
allowed.
3. After completion of the above and
any additional development deemed
necessary, the issues on appeal should
be reviewed with consideration of all
applicable laws and regulations. A
specific determination should be made
as to whether any clothing allowance
application timing requirements may be
waived because of a service-connected
psychiatric disability. If any benefit
sought remains denied, the veteran
should be furnished an appropriate
supplemental statement of the case and
be afforded the opportunity to respond.
Thereafter, the case should be returned
to the Board for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs